Date: 20030626
Docket: IMM-3208-02
Citation: 2003 FCT 785
Ottawa, Ontario, Thursday the 26th day of June 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MARIA BEATRIZ ARGUELLO DE BAEZ
VALERIA FERNAND BAEZ
PABLO MARTIN BAEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Pablo Baez suffers from cerebelous ataxia, a neurological condition that produces involuntary body movements. Maria Arguello de Baez is his mother and Valeria Baez is his sister. Together, they left their home in Argentina to claim status as Convention refugees in Canada. They allege a well-founded fear of persecution in Argentina because people there ridicule Pablo's handicap. Pablo and his family fear that, in time, he will be harmed by those who ridicule him.
[2] The Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") found that Pablo and his mother and sister were not Convention refugees because what they feared was possible discrimination, not persecution, on a ground that is not a basis for seeking international protection under the United Nations Convention Relating to the Status of Refugees. The CRDD also found that the applicants should have sought protection from the police in Argentina, because there was no persuasive evidence that Argentina condones, or is complicit in, the discriminatory treatment of Pablo.
[3] In this application for judicial review, the applicants assert that the CRDD erred in rejecting their claim. The specific errors alleged, as cited in the applicants' memorandum of fact and law, are as follows:
1. Did the Refugee Board Panel members who presided at the hearing of the within claims to be Convention refugees err in a material respect by determining that merely because the claimants had not complained to the police that was fatal to their claim.
2. Can it be said in all fairness and justice that the mere fact that if a complaint were made to the police, that in some reasonably anticipated manner would have ended the discrimination/persecution?
3. Do the facts justify a conclusion that the failure to complain to the police undermined the credibility of the claim and led to a reasonable presumption that state protection in this instance would have been adequate to prevent the persecution of Pablo Martin Baez?
4. Is it reasonable to conclude that the Refugee Division Panel erred in its assessment of evidence and its application of legal principles by adopting a paradigm for persecution which is general and which is unreasonable in the circumstances of this case?
With the consent of the parties this application was decided on the basis of the written record.
ANALYSIS
[4] The term "Convention refugee" was defined in subsection 2(1) of the former Immigration Act, R.S.C. 1985, c. I-2 as follows:
| "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.
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« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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[5] It is appropriate to consider the conclusions of the CRDD in the context of this definition.
(i) The existence of a well-founded fear
[6] In order to qualify for protection, the applicants must demonstrate a well-founded fear of persecution. Here, the CRDD found that what the applicants suffered was discrimination, not persecution. The applicants say this is a "paradigm for persecution" which is unreasonable.
[7] In Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129, the Federal Court of Appeal considered the meaning of the term "persecution" found in the definition of Convention refugee, and enunciated a test for persecution based upon the affliction of repeated acts of cruelty, or a particular course or period of systemic infliction of punishment. Discriminatory acts may constitute persecution if they are sufficiently serious and occur over such a long period of time that a claimant's physical or moral integrity are threatened. See: N.K. v. Canada (Solicitor General) (1995), 32 Imm. L.R. (2d) 275. The dividing line between persecution and discrimination may be difficult to establish. It is in every case a question of mixed fact and law. The conclusion of the CRDD as to the existence of discrimination or persecution may be set aside by this Court only if perverse or capricious, or made without regard to the evidence. See: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.); leave
to appeal to the Supreme Court of Canada dismissed February 17, 1994 [1993] S.C.C.A. No. 461.
[8] Very little evidence was adduced before the CRDD in this case with respect to what actually happened to Pablo in Argentina. The applicants say Pablo is discriminated against, that he is mocked and that the police give him a "hard time" because they think he is drunk or on drugs. There was no evidence of any specific discrimination faced by Pablo. He was not denied the right to go to school as a result of his disability, and he acquired a Graphic Design Diploma. He had to forego further studies due to illness. Although medical treatment is difficult to obtain in Argentina, there is no indication that Pablo was refused treatment, nor any evidence that he applied for jobs and was refused because of his disability.
[9] Under the circumstances, it was not unreasonable for the CRDD to conclude that the treatment inflicted on Pablo, however reprehensible, did not constitute persecution within the meaning of the definition of Convention refugee.
(ii) The fear must be by reason of race, religion, nationality, membership in a particular social group or political opinion
[10] In order for a person to qualify for protection as a Convention refugee, the reason for the persecution must be one of the reasons enumerated in the definition of Convention refugee. The connection between the harm and the Convention ground must be clearly demonstrated in the evidence.
[11] In the present case, the CRDD found no nexus between the applicants' fear and a Convention ground. No complaint regarding that finding is made, and it was a finding open to the CRDD on the evidence.
(iii) State-protection
[12] The definition of Convention refugee requires that the CRDD determine whether a claimant is willing or able to obtain the protection of his or her country of nationality. A claim to refugee status is only to be accepted where a claimant establishes that he or she cannot obtain adequate state protection.
[13] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 Mr. Justice LaForest, writing for the Court, noted that international refugee law is a back-up to the protection one normally finds within his or her own state. It was the intention of the international community that persecuted individuals be required to approach their home state before the responsibility of other states is triggered. However, the Court acknowledged that where the evidence indicates that such protection will not be forthcoming, there is no requirement that a person seek such protection. Absent a complete breakdown of the state apparatus, it should be assumed that a state is capable of protecting its citizens. Otherwise, clear and convincing evidence must be provided that confirms the state's inability to protect its citizens.
[14] In the present case, the applicants never attempted to report their concerns to the police. They say that the police were part of Pablo's problem, so it is unreasonable to expect him to seek protection from the police.
[15] However, in Kadenko v. Canada (Solicitor General) (1996) 143 D.L.R. (4th) 532 (F.C.A.) the Federal Court of the Appeal expressed the obligation on a claimant in the following terms:
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her [...].
[16] Thus, the actions of some police officers does not obviate the need to seek protection from the authorities. Discrimination by some police officers is not sufficient proof of the state's unwillingness to provide, or inability on the part of the applicants, to seek protection.
[17] In their argument on this application for judicial review, the applicants do not suggest that the CRDD ignored evidence about the existence of state protection. Rather, they assert that the CRDD was wrong to conclude on the evidence that adequate state protection exists in Argentina. However, the conclusion of the CRDD on this issue was founded in the country reports in evidence before the CRDD. Such documents reported that complaints may be made against police officers, and that mechanisms are in place to see that such complaints are acted upon. The applicants have not shown the CRDD's conclusion to be patently unreasonable or that it was reached contrary to the applicable legal principles. No reviewable error is, therefore, established with respect to the conclusion of the CRDD regarding state protection.
CONCLUSION
[18] For these reasons, the application for judicial review must be dismissed.
[19] The applicants shall have 10 days to serve and file correspondence setting out any question of general importance they say arises upon this evidentiary record and which they wish to be certified. Thereafter, the respondent shall have five working days to serve and file responsive correspondence. Following receipt and consideration of those submissions, an order will issue dismissing the application for judicial review.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3208-02
STYLE OF CAUSE: Maria Beatriz Arguello De Baez, Valeria Fernanda Baez, Pablo Martin Baez v. Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, June 5, 2003
REASONS FOR ORDER: Hon. Madam Justice Dawson
DATED: June 26, 2003
APPEARANCES:
Applicants themselves FOR THE APPLICANTS
Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
Applicants themselves FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General FOR THE RESPONDENT